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Under Louisiana workers’ compensation law, employees injured in on-the-job accidents may be entitled to workers’ compensation benefits. If awarded by a court, such benefits must be paid as soon as possible. When an employer fails to pay benefits in a timely manner, penalties and attorney fees may be assessed against the employer. Such penalties are governed by statute. A recent decision of the Louisiana Third Circuit Court of Appeal discusses the application of penalties in workers’ compensation cases.

In 1997, Homer Landry was injured while employed by Petroleum Helicopters, Inc. (“PHI”) a corporation headquartered in Lafayette, Louisiana. The injury aggravated a pre-existing seizure condition and damaged his brain’s frontal lobes. This caused him to experience serious behavior changes, such as impulse control issues. His treating physicians concluded that he needed to be institutionalized for his own well-being. Mr. Landry’s attorney and counsel for PHI hired Dr. Cornelius Gorman, a licensed vocational rehabilitation counselor and certified life-care planner. Dr. Gorman then sent Mr. Landry to be evaluated by the staff at NeuroRestorative Timber Ridge, a facility in Benton, Arkansas that houses and treats people with brain injuries. Mr. Landry was accepted at the facility and his treatment has included environmental engineering and medication. Dr. Gorman created a life care plan for Mr. Landry that estimated the cost of his future care would be approximately $14 million and that the care Mr. Landry’s wife gave him was $13.4 million.

At trial, the Workers’ Compensation Judge (“WCJ”) ordered that PHI’s insurer pay for Mr. Landry’s treatment at Timber Ridge. The WCJ also awarded Mr. Landry $2,000 in penalties for the underpayment of his indemnity benefits, $2,000 in penalties for delaying Mr. Landry’s admission to Timber Ridge, and $2,000 in penalties for each late payment of several medical bills. The penalties were subject to the $8,000 cap on pursuant to La. R.S. 23:1201(F). The WCJ denied Mr. Landry reimbursement for the care his wife gave him between his accident and the time he was admitted to Timber Ridge. Mr. Landry appealed the cap on penalties and the WCJ’s denial of his claim for reimbursement of his wife’s attendant care. More specifically, Mr. Landry argued that the Trial Court erroneously: (1) applied res judicata; (2) failed to apply the law in effect on the date of the accident; (3) failed to award multiple penalties; (4) failed to award Tena Landry damages for attendant care; and (5) failed to grant his Motion to Accelerate benefits.

erasure-1237046-1024x768Courts are not perfect, and sometimes they do not always render the correct decision. When a court makes an error in their judgment it can be very frustrating for all of the parties involved. Error can be very costly especially when a major issue, like finding coverage for a victim of an automobile accident under an umbrella insurance policy, needs to be determined. Both the plaintiff and defendant wants the court to look in their favor, but it is also the responsibility of the court to make an error free and accurate decision that is fair and just to both sides.

One such case where the trial court made an error in rendering a final judgment comes from St. Tammany Parish, Louisiana. On May 26, 2010, Gary Michael Brown (“Mr. Brown”) was driving a truck that was owned by his employer J&J Diving Corporation. While driving, Mr. Brown got into an accident with St. Tammany Parish Sheriff’s Deputy, Scott Jarred (“Mr. Jarred”). Mr. Jarred filed a lawsuit against Mr. Brown, J&J Diving Corporation, and Progressive Insurance Company. On May 22, 2012, Mr. Jarred amended his original complaint and added two more defendants. These defendants were XL Specialty Insurance Company and Valiant Insurance Company, and they provided a Marine Excess Liability Policy, or Bumbershoot policy, for J&J Diving Corporation. Two days later, Mr. Jarred entered into a Gasquet release. A Gasquet release is where the plaintiff settles all claims with the primary insurance provider for a smaller amount than policy limits, but does not settle with the umbrella policy insurer. Gasquet v. Commercial Union Ins. Co., 391 So.2d 466 (La. Ct. App. 4th Cir. 1980), writ denied, 396 So.2d 921 (La. 1981). Mr. Jarred settled all of the claims against J&J Diving Corporation, Mr. Brown, and Progressive; but he reserved his claims against both XL Specialty Insurance and Valiant Insurance.

XL Specialty Insurance and Valiant Insurance filed a motion for summary judgment on December 5, 2013. Their main argument surrounding the motion, was that the Bumbershoot policy only provided coverage to J&J Diving Corporation for their commercial diving contractor operations. The accident between Mr. Jarred and Mr. Brown was not related to those commercial diving contractor operations. Because there was no relation, the Bumbershoot policy should not provide any coverage for Mr. Jarred’s accident. Mr. Jarred filed a cross-motion for summary judgment on February 14, 2014 and requested that the trial court should find coverage for him under the Bumbershoot policy provided by XL Specialty Insurance and Valiant Insurance. Mr. Jarred’s main argument was that because the policy contained the word “contractor,” the Bumbershoot policy therefore expanded the coverage and should be provided to him. The trial court granted summary judgment in favor of Mr. Jarred on June 5, 2014 and certified that their decision was a final judgment because there was no just reason for delay.

old-truck-lublin-1449942-1024x658Has your business sought to avoid litigation over its insured business activities by negotiating an out of court settlement? Louisiana business Meyers Warehouse, Inc. (“Meyers) pursued this route assuming its insurer, Canal Indemnity Company (“Canal”), would join Meyers in settlement negotiations. However, to its surprise, Canal refused to participate in Meyers’s defense. Unfortunately for Meyers, it misinterpreted key terms within its insurance policy specifying when Canal’s duty to defend it against claims and lawsuits arises.

Meyers is the owner and operator of several trucks, trailers, and trucking operations in Louisiana. Like many businesses, it purchased insurance coverage to protect against liabilities stemming from core business activities. In November 2011, Meyers received notification that one of its shipments contained contaminated liquid sugar. The contamination caused significant damage to the client’s production line.

Meyers and the client reached a settlement agreement in lieu of pursuing litigation. The agreement transferred the liability for damages to the third party contractor responsible for cleaning Meyers’s tankers. Canal was not involved in the negotiation process. Meyers filed its lawsuit against Canal because Canal refused to participate in Meyers’s defense during the settlement negotiations arising out of the November 2011 notification. The primary dispute between the parties was whether or not Canal had a duty to defend Meyers during the settlement negotiations even though no lawsuit against Meyers was ever filed.

crash-test-dummies-1251143-1-768x1024Car accidents are among the most common reasons for a lawsuit. An average car accident is often difficult to conclude which party is at fault. Issues are further complicated if insurance claims are involved. Who is truly at fault for the accident if a vehicle malfunctioned?  A trial becomes increasingly complex if a Plaintiff claims that a company is at fault for his injuries. Specific elements are required for a successful trial.

Recently, a multiple car accident occurred in near St. Tammy’s Parish. Mr. Bordelon allegedly caused the accident by swerving into multiple lanes and colliding with two vehicles. The second crash involved Mr. Reynolds who sustained serious injuries when his car landed in a ditch. However, Mr. Reynolds did not simply blame Mr. Bordelon for the accident, but additionally filled a lawsuit against Nissan- the company who designed and manufactured his vehicle under Louisiana Products Liability Act (“LPLA”). Mr. Reynolds sued Nissan due to his air bags’ failure to deploy. The trial court denied Mr. Reynolds’ claim and granted Nissan summary judgment.

However, Mr. Reynolds appealed the trial court’s decision to the Supreme Court of Louisiana. In reviewing the trial court’s decision, the Supreme Court utilized a de novo standard- using the criteria as the trial court. Overall, the Plaintiff took issue with the trial court excluding certain evidence. According to the Supreme Courts’ analysis, the trial court properly excluded evidence. Largely, evidence was excluded due lack of verification. Mr. Reynolds presented pictures of the alleged accident, but no verification of the date, time or address to prove pictures where in fact of the accident.  See La.Code Evid. Art. 401. and La.Code Evid. Art. 803.

blacksmith-1500444-1024x768Accidents occur in daily life. Often, severe injuries result. However, prison accidents rarely are discussed. Prisoners who are victims of  accidents while serving time  are often provided with the same legal protections as an average person.

Mr. Fisher was serving time in Louisiana. During his time incarnated, Mr. Fisher worked within the prison where he was in charge of keeping the gas furnace running. On the day in question, Mr. Fisher followed the same procedure as he did daily for lighting the gas furnace. Unfortunately, upon lighting the furnace, an explosion occurred which caused Mr. Fisher’s severe injuries.

In his first trial, the Court concluded that Mr. Fisher did not meet the requirements to bring a lawsuit against prison officials for his injuries. In order to recover for this injury—much like an average person—Mr. Fisher was required to prove both of the following: vice or defect and actual or constructive notice. See La.R.S. 9:2800La. Code Civ. P. arts. 966 and 967. The trial court held that Mr. Fisher did not meet his the standard for both elements. Therefore, the Court concluded summary judgment for the prison officials was appropriate. This decision dictated that Mr. Fisher could not recover for his injuries.

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Is  arbitration the best choice even if you don’t think you chose it? In this case out of Orleans Parish the Louisiana Fourth Circuit Court of Appeals decided on an appeal for a declaratory judgment action seeking a decision that the parties had not agreed to arbitrate in their contract. A declaratory judgment is a decision by the court resolving a matter that was uncertain for the parties. Delta Administrative Services (“DAS”) brought this action against Limousine Livery, Ltd. (“LLI)”) and they are seeking not only a declaratory judgment saying that they did not agree to arbitration but an injunction against LLI to prevent them from moving forward with the arbitration it had already begun. An injunction is an order by the court telling a party to stop or to keep from beginning an action that could be harmful to another party.

In 2010, DAS and LLI entered into a contract for DAS to provide payroll and human resources services to LLI. The contract was a basic contract that was being used by DAS in its business at the time it made the agreement with LLI. The owner and manager of DAS customized the contract to fit the agreement before sending it to LLI. Neither DAS or LLI discussed that dispute resolution clause in the contract. The dispute resolution clause in this contract required choosing between and “either/or” provision and neither party made any indication that a choice was made. Both parties had representatives sign the agreement making both provisions of the alternative dispute clause an effective part of the contract.

When the contractual relationship between DAS and LLI ended, both parties invoked the contract. LLI attempted to follow the provision of the alternative dispute clause by going to mediation before resorting to arbitration. Mediation involves both parties meeting with a neutral third-party in hopes of settling the matter. Arbitration is an out of court dispute resolution where the parties agree to be bound by the arbitrator’s decision. DAS was aware and did not object to LLI’s attempt to set up mediation. LLI and DAS had two unsuccessful mediations, both of which DAS participated in without objection. LLI then filed for arbitration with the American Arbitration Association (“AAA”). At this point, DAS objected, stating that it had never agreed to arbitrate. AAA decided that the dispute met the requirements for them to move forward with the arbitration. DAS then filed a petition for declaratory judgment and a preliminary and permanent injunction. The basis for this petition is that DAS believed the “either/or” provisions that had been made a part of the contract were in conflict with each other and that because no choice was made there was never an agreement to arbitrate. The parties agreed to wait on the arbitration until the court could come to a determination. The District Court of Orleans Parish decided that DAS showed consent to arbitrate by signature and by participating in the mediation as a step of the arbitration agreement.

pharmacy-1507606-1-1024x768Recently, the Louisiana Fifth Circuit Court of Appeals increased a trial court’s award of damages to a plaintiff in a negligence action against Walgreens. Negligence involves showing the court that one person (or company) failed to do their duty—and as a result, someone was hurt. In this case, Peggy Williams asked her son Derrick to pick up a medication for her from the Walgreens pharmacy in Gretna. Walgreens’ pharmacist handed Derrick another person’s medication, and Ms. Williams took the pills without noticing the mistake. As a result, she suffered several strokes and long-term loss of physical capacity. The jury found that Ms. Williams and her son were 40% at fault, and that Walgreens was 60% at fault for the harms Ms. Williams suffered.

Ms. Williams appealed the judgment on two grounds.

First, she argued that the trial judge made a mistake by entering a judgment different from the jury’s responses on the verdict form. The verdict form apportioned the fault to the parties in the following manner:

helicopter-1450413-1-683x1024Many people have nightmares of falling and nobody being there to catch them. For Tommie Hebert, that nightmare became a reality when he fell from a moving helicopter, landing directly on his back, causing severe injuries such as a broken back and a damaged hip that would likely require replacement. To make matters worse, the company he worked for, Industrial, was not there to catch him.

J. Oran Richard, owner of Industrial, owned another company, Game Management Inc., ( GMI) that leased large tracts of land for hunting, fishing and farming in Louisiana and Texas. GMI did wildlife surveys in Mexico by helicopter, where deer were tracked and netted. It was common for employees to work for both companies.  Tommie Hebert was primarily a truck driver for Industrial, and would only go on the helicopter trips because Michael Richard, the owner’s son, was someone he considered his friend.  Typically Hebert would only go when another person could not make the trip.  Unfortunately for Herbert on one of these trips he fell from the helicopter and a lawsuit against his employers followed.

One would assume that netting deer in Mexico would not be considered in the scope of employment for someone whose job is to drive a freight truck. But that is exactly what Industrial was claiming in the lawsuit that Hebert brought against them. In the original lawsuit, a jury found in favor of Industrial that Herbert was working for them when injured, mainly because they had determined through testimony that Hebert had been on the job and had done this type of work many times before.  Therefore Herbert could not recover damages from Industrial or its owner, J. Oran Richard, or his son, Michael Richard in tort.  Herbert would only be allowed to recover workers compensation benefits. GMI was found to have no legal duty to Hebert, Industrial was found to be forty-four percent at fault, and Hebert, the man who was determined to be permanently disabled, was found to be fifty-six percent at fault for his injuries.

the-old-sawmill-hdr-1209113-1-1024x759If  you are injured while at work, there are many paths that you may take for financial relief. The path that you choose along with how you navigate that path will be a decision that will affect you for the rest of your life. The following case out of  Tangipahoa parish demonstrates why it is necessary in workers compensation cases to comply with certain orders and if you don’t why objections to rulings based on your lack of responses will not be considered.

On May 2, 2008, Mr. Carlton Williams was injured during the course of his employment at a sawmill as a delivery driver when a forklift driver dropped several pallets on top of him, knocking him unconscious. Mr. Williams alleged injuries to the head, shoulder, neck, left foot, right knee, lumbar, and various other injuries. Mr. Williams filed a tort claim against the forklift operator’s employer and the employer’s insurer, which settled out of court.

After being injured at the sawmill Mr. Williams received workers compensation benefits because the injury occurred at his job. If a third party is responsible for someones injuries that occur at work, which occurred in this case, the injured worker can file a lawsuit against that third party and at the same time receive workers compensation benefits.  However, when you resolve the lawsuit against the third party you will be forced to pay back the workers compensation carrier all the benefits they paid you.

In response to the financial hardship being faced by small business owners and employees of many different Gulf industries, BP has opened an assortment of claims offices that can help individuals looking to fill out their forms. Before visiting these sites, claimants are asked to call 1-800-440-0858.

Additionally, the Small Business Administration has opened offices where owners may discuss options available to them under the SBA’s Economic Injury Disaster Loan program.

Click here for the addresses of the claims center nearest you.